Compensation claims from patients who were denied continuing healthcare on the NHS are beginning to hit finance directors' desks. David Lock explains how to respond to them

Solicitors acting for the estates of deceased patients who were denied funding for NHS continuing healthcare have recently been attempting to claim back nursing home fees.

A common feature of these claims is that the patients applied for continuing healthcare during their lives and were turned down. Any claim made for someone who never applied while they were alive should be rejected out of hand as the NHS has no duty to meet healthcare costs of people who do not apply to it for support.

Some of these claims were turned down by strategic health authorities, while others went as far as the parliamentary and healthcare ombudsman before being rejected. So how can they be resurrected after so many years?

Changing criteria

The answer lies in the national framework for NHS continuing healthcare, which came into force in October 2007 and is arguably more generous than previous eligibility criteria set at SHA level.

Before the new framework was introduced, the parliamentary ombudsman had been pressing the NHS to relax its continuing healthcare eligibility criteria for some time but had not suggested that the previous criteria were unlawful - merely that they were too restrictive.

So, the argument goes, the NHS should have been more generous in earlier years and behaved unlawfully in not awarding continuing healthcare.

Is this a new equal pay gravy train for the lawyers? Frankly, I doubt it, as such cases seem to face a number of substantial procedural problems.

Right to ration

The first problem is that as long ago as 1999, the Court of Appeal decided in the Coughlan case that the NHS was not obliged to meet every healthcare need and was entitled to ration care.

So the fact that certain healthcare needs are being funded today but were not in the past does not mean decisions taken in previous years to deny funding were unlawful. The differences are simply the consequence of lawful rationing decisions taken over the years.

Second, if the estates of these patients had any claims, there is a strong argument that they should have been launched by judicial review actions at the time, not as "private law" damages actions, using a process that seeks to avoid the procedural protections that exist for public bodies in judicial review proceedings. The judicial review time limit is three months and these claims are far older than that.

Third, even if the new national framework criteria are relevant, which seems unlikely, it is impossible for the courts or anyone else to say for certain whether a patient would have qualified under the new tests. The patients are dead and all we have are their records, which may or may not be complete. This must be to the prejudice of the NHS and makes a fair trial of these issues now nigh on impossible in many cases.

So, if finance directors see these claims landing on their desks, they should take them seriously, instruct their lawyers and robustly defend them. As yet, none of these cases are being run on legal aid, so if the claims are struck out by the court the NHS should get most of its legal costs back from the other side.